Muslim Marriage in Western Courts: Lost in Transplantation (Cultural Diversity and Law) - Hardcover

Fournier, Pascale

Hardcover

ISBN 10: 1409404412 ISBN 13: 9781409404415

Publisher: Routledge, 2010

Synopsis

This book describes and analyses the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. Although the outcomes of the cases provide an illustrative framework for the book, the focus is broader than simply the adjudicative endeavours. The work explores the concept of liberalism, which purportedly champions individuals and individual choice concurrently with freedom and equality. Tensions between and among these concepts, however, inevitably arise. The acknowledgment and exploration of these intertwined tensions forms an important underpinning for the book. Through the analysis of case law from these four countries, this study suggests that transplanting Mahr from Islamic law into a Western courtroom cannot be undone: it immediately becomes rooted in the countries' legal, historical, political, and social backgrounds and flourishes (or fails) in diverse and unexpected ways. Rather than being the concept described by classical Islamic jurists, Mahr is interpreted according to wildly varied legal constructs and concepts such as multiculturalism, fairness, public policy, and gender equality. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity (a fragmented and disjointed Mahr) which will be mediated through Western law. Returning to the overarching concept of liberalism, the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.

About this title

About the Author:

Pascale Fournier is Associate Professor of Law at the University of Ottawa and a Research Associate at the University's Human Rights Research and Education Centre (HRREC). Professor Fournier received her LL.B in Law (1997) from Laval University, her LL.M. (2000) from the University of Toronto and her S.J.D. (2007) from Harvard Law School. Before arriving at Harvard, she served as Law Clerk to Justice L'Heureux-Dubé at the Supreme Court of Canada. Her scholarship focuses on comparative family law, Islam and Judaism in Europe and North America, constitutional law and freedom of religion, migration in the context of globalization, and the relationship between multiculturalism and gender. Her current research project, funded by the Social Sciences and Humanities Research Council of Canada, investigates the migration of two forms of religious divorces (the Jewish Get and the Islamic Talaq) in Canada, France, Britain and Germany, and the effects of such migration on Jewish and Muslim women. Pascale has lectured at the State University of Haiti, McGill University, the University for Peace in Costa Rica and the Institute for Women's Studies and Research in Iran. She recently served as an expert consultant on issues of gender and Islamic law for the United Nations Development Programme. She was awarded the Laval University Raymond-Blais Medal in 2008, the Québec Bar Association's Advocatus Emeritus distinction in 2009 and the Québec Bar Foundation prize for 'best article' in 2009.

Review:

'Pascale Fournier provides a lucid introduction to comparative legal technique (marriage laws of Muslim countries differ widely, as do the relevant laws of the Western host countries), and most impressively to applied critical theory. A multi-disciplinary tour de force, opening a new territory, sure to shape the debate on how to reform current policies.' Duncan Kennedy, Harvard Law School, USA 'A cutting edge book - impeccably conceptualized and richly documented - on the tensions between Western liberal legal systems and Islamic legal concepts. By focusing on how Western courts interpret the Islamic concept of Mahr or gift to the bride, Pascale Fournier succeeds in presenting a sharp and original analysis of liberalism and multiculturalism.' Mounira M. Charrad, University of Texas, USA 'Pascale Fournier's fascinating book examines the Mahr, central to Muslim marriage, in Western legal systems. Using analytical and fictional techniques, Fournier's writing grips the reader with court cases from Canada, France, Germany, and the US, showing Muslim women of different origins, social circumstances and orientations, negotiating their rights in multi-cultural contexts.' Lilia Labidi, University of Tunis, Tunisia 'Muslim Marriages in Western Courts is a thought-provoking and unusually sophisticated book. Fournier gives us the first circumstantial, comparative account of the 'legal life' of Mahr, a concept so far unknown in Western legal systems. This superb study of the relationship between Western and Islamic law crosses many boundaries and should be relevant to anyone with an interest in women's rights and positions in plural societies. Moreover, it challenges the reader to reconsider conventional ideas about legal transplants and, more generally, about pluralism and the law.' Marie-Claire Foblets, University of Leuven, Belgium '... this is a very good book, highly recommended for those interested in Islamic family law as applied in Western jurisdictions, as well as those who are generally interested in the migration of Muslim communities into western societies.' Religion and Human Rights '... Muslim Marriage in Western Courts a pioneering work in this field and has a lot to offer to students and researchers of comparative law. Very insightfully, [Pascale Fournier] identifies three approaches adopted by the courts in USA, Germany, France and Canada...' Muslim World Book Review '... this is a very good book, highly recommended for those interested in Islamic family law as applied in Western jurisdictions, as well as those who are generally interested in the migration of Muslim communities into western societies.' Religion and Human Rights 'Fournier's Muslim Marriage in Western Courts is an important work not for what it says about 'Muslim marriage' or even about Islamic family law, but rather, for what it enables western readers to understand about western courts.' Law and Politics Book Review 'The strength of Muslim Marriage in Western Courts is its readability. It is well positioned with the previous literature and it does not assume previous knowledge of law, theology or feminist critiques. For these reasons, the book will attract readers from a number of disciplines who will differently draw from the material. As a Religious Studies scholar interested in Islam in the West, Fournier's unpacking of the four socio-political contexts and differing presentations and reception of cases were the most pertinent parts of her analysis for me. Legal scholars may find her division of the cases into three theoretical models more useful. No matter one's entry into the question of mahr in the West, the transnational encounter of various legal systems on this evocative matter raises questions of gender, marriage, religiosity, private arbitration, and sharia (Islamic law). Fournier's contemporary legal study of mahr therefore promises to be an integral tool and an important reference for students and scholars in a cross-section of fields.' Contemporary Islam 'Cutting across many of the most important debates around religion and religious diversity, Pascale Fournier presents a riveting tale of the transplantation of Muslim marriage in Western courts. Fournier draws into her critical legal economic analysis questions about legal pluralism, women's equality, legal realism, and the "othering" that takes place in Western courts when they are presented with mahr on divorce. The result is a compelling analytical framework for making sense of the ways in which mahr is dealt with by the courts.' Canadian Journal of Law and Society 'Muslim Marriage in Western Courts is absolutely a refreshing eye-catcher compared to other books on similar topics in the field... The book is an invaluable addition to the library of every academic and legal practitioner who is interested in multiculturalism, legal diversity, comparative Law, Islamic law/Islam, private international law, transnational law, human rights, socio-legal approaches, or critical legal studies.' Maastricht Journal of European and Comparative Law 'This richly documented study... is an important addition to knowledge for practitioners and scholars of comparative family law and private international law.' Immigration, Asylum and Nationality Law

About this edition

• Publisher: Routledge
• Publication date: 2010
• ISBN 10: 1409404412
• ISBN 13: 9781409404415
• Binding: Hardcover
• Edition number: 1
• Number of pages: 228